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Electronic Privacy Information Center v. Presidential Advisory Commission on Election Integrity

United States District Court, District of Columbia

July 24, 2017




         This case arises from the establishment by Executive Order of the Presidential Advisory Commission on Election Integrity (the “Commission”), and a request by that Commission for each of the 50 states and the District of Columbia to provide it with certain publicly available voter roll information. Pending before the Court is Plaintiff's [35] Amended Motion for Temporary Restraining Order and Preliminary Injunction, which seeks injunctive relief prohibiting Defendants from “collecting voter roll data from states and state election officials” and directing Defendants to “delete and disgorge any voter roll data already collected or hereafter received.” Proposed TRO, ECF No. 35-6, at 1-2.

         Although substantial public attention has been focused on the Commission's request, the legal issues involved are highly technical. In addition to the Fifth Amendment of the Constitution, three federal laws are implicated: the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (“A PA ”), the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899 (“E-Government Act”), and the Federal Advisory Committee Act, codified at 5 U.S.C. app. 2 (“FAC A ”). All three are likely unfamiliar to the vast majority of Americans, and even seasoned legal practitioners are unlikely to have encountered the latter two. Matters are further complicated by the doctrine of standing, a Constitutional prerequisite for this Court to consider the merits of this lawsuit.

         Given the preliminary and emergency nature of the relief sought, the Court need not at this time decide conclusively whether Plaintiff is, or is not, ultimately entitled to relief on the merits. Rather, if Plaintiff has standing to bring this lawsuit, then relief may be granted if the Court finds that Plaintiff has a likelihood of succeeding on the merits, that it would suffer irreparable harm absent injunctive relief, and that other equitable factors- that is, questions of fairness, justice, and the public interest-warrant such relief.

         The Court held a lengthy hearing on July 7, 2017, and has carefully reviewed the parties' voluminous submissions to the Court, the applicable law, and the record as a whole. Following the hearing, additional defendants were added to this lawsuit, and Plaintiff filed the pending, amended motion for injunctive relief, which has now been fully briefed. For the reasons detailed below, the Court finds that Plaintiff has standing to seek redress for the informational injuries that it has allegedly suffered as a result of Defendants declining to conduct and publish a Privacy Impact Assessment pursuant to the E-Government Act prior to initiating their collection of voter roll information. Plaintiff does not, however, have standing to pursue Constitutional or statutory claims on behalf of its advisory board members.

         Although Plaintiff has won the standing battle, it proves to be a Pyrrhic victory. The E-Government Act does not itself provide for a cause of action, and consequently, Plaintiff must seek judicial review pursuant to the APA. However, the APA only applies to “agency action.” Given the factual circumstances presently before the Court-which have changed substantially since this case was filed three weeks ago-Defendants' collection of voter roll information does not currently involve agency action. Under the binding precedent of this circuit, entities in close proximity to the President, which do not wield “substantial independent authority, ” are not “agencies” for purposes of the APA. On this basis, neither the Commission or the Director of White House Information Technology-who is currently charged with collecting voter roll information on behalf of the Commission-are “agencies” for purposes of the APA, meaning the Court cannot presently exert judicial review over the collection process. To the extent the factual circumstances change, however-for example, if the de jure or de facto powers of the Commission expand beyond those of a purely advisory body-this determination may need to be revisited. Finally, the Court also finds that Plaintiff has not demonstrated an irreparable informational injury- given that the law does not presently entitle it to information-and that the equitable and public interest factors are in equipoise. These interests may very well be served by additional disclosure, but they would not be served by this Court, without a legal mandate, ordering the disclosure of information where no right to such information currently exists. Accordingly, upon consideration of the pleadings, [1] the relevant legal authorities, and the record as a whole, Plaintiff's [35] Motion for a Temporary Restraining Order and Preliminary Injunction is DENIED WITHOUT PREJUDICE.[2]

         I. BACKGROUND

         The Commission was established by Executive Order on May 11, 2017. Executive Order No. 13, 799, 82 Fed. Reg. 22, 389 (May 11, 2017) (“Exec. Order”). According to the Executive Order, the Commission's purpose is to “study the registration and voting processes used in Federal elections.” Id. § 3. The Executive Order states that the Commission is “solely advisory, ” and that it shall disband 30 days after submitting a report to the President on three areas related to “voting processes” in federal elections. Id. §§ 3, 6. The Vice President is the chair of the Commission, and the President may appoint 15 additional members. From this group, the Vice President is permitted to appoint a Vice Chair of the Commission. The Vice President has named Kris W. Kobach, Secretary of State for Kansas, to serve as the Vice Chair. Decl. of Kris Kobach, ECF No. 8-1 (“Kobach Decl.”), ¶ 1. Apart from the Vice President and the Vice Chair, there are presently ten other members of the Commission, including Commissioner Christy McCormick of the Election Assistance Commission (the “EAC”), who is currently the only federal agency official serving on the Commission, and a number of state election officials, both Democratic and Republican, and a Senior Legal Fellow of the Heritage Foundation. Lawyers' Committee for Civil Rights Under the Law v. Presidential Advisory Commission on Election Integrity, No. 17-cv-1354 (D.D.C. July 10, 2017), Decl. of Andrew J. Kossack, ECF No. 15-1 (“Kossack Decl.”), ¶ 1; Second Decl. of Kris W. Kobach, ECF No. 11-1 (“Second Kobach Decl.”), ¶ 1. According to Defendants, “McCormick is not serving in her official capacity as a member of the EAC.” Second Kobach Decl. ¶ 2. The Executive Order also provides that the General Services Administration (“GSA”), a federal agency, will “provide the Commission with such administrative services, funds, facilities, staff, equipment, and other support services as may be necessary to carry out its mission on a reimbursable basis, ” and that other federal agencies “shall endeavor to cooperate with the Commission.” Exec. Order, § 7.

         Following his appointment as Vice Chair, Mr. Kobach directed that identical letters “be sent to the secretaries of state or chief election officers of each of the fifty states and the District of Columbia.” Kobach Decl. ¶ 4. In addition to soliciting the views of state officials on certain election matters by way of seven broad policy questions, each of the letters requests that state officials provide the Commission with the “publicly available voter roll data” of their respective states, “including, if publicly available under the laws of [their] state, the full first and last names of all registrants, middle names or initials if available, addresses, dates of birth, political party (if recorded in your state), last four digits of social security number if available, voter history (elections voted in) from 2006 onward, active/inactive status, cancelled status, information regarding any felony convictions, information regarding voter registration in another state, information regarding military status, and overseas citizen information.” Kobach Decl., Ex. 3 (June 28, 2017 Letter to the Honorable John Merrill, Secretary of State of Alabama). The letters sent by Mr. Kobach also indicate that “[a]ny documents that are submitted to the full Commission will . . . be made available to the public.” Id. Defendants have represented that this statement applies only to “narrative responses” submitted by states to the Commission. Id. ¶ 5. “With respect to voter roll data, the Commission intends to de-identify any such data prior to any public release of documents. In other words, the voter rolls themselves will not be released to the public by the Commission.” Id. The exact process by which de-identification and publication of voter roll data will occur has yet to be determined. Hr'g Tr. 36:20-37:8.

         Each letter states that responses may be submitted electronically to an email address,, “or by utilizing the Safe Access File Exchange (‘SAFE'), which is a secure FTP site the federal government uses for transferring large data files.” Kobach Decl., Ex. 3. The SAFE website is accessible at Welcome.aspx. Defendants have represented that it was their intention that “narrative responses” to the letters' broad policy questions should be sent via email, while voter roll information should be uploaded by using the SAFE system. Id. ¶ 5.

         According to Defendants, the email address named in the letters “is a White House email address (in the Office of the Vice President) and subject to the security protecting all White House communications and networks.” Id. Defendants, citing security concerns, declined to detail the extent to which other federal agencies are involved in the maintenance of the White House computer system. Hr'g Tr. 35:2-10. The SAFE system, however, is operated by the U.S. Army Aviation and Missile Research Development and Engineering Center, a component of the Department of Defense. Second Kobach Decl. ¶ 4; Hr'g Tr. 32:6-9. The SAFE system was “originally designed to provide Army Missile and Research, Development and Engineering Command (AMRDEC) employees and those doing business with AMRDEC an alternate way to send files.” Safe Access File Exchange (Aug. 8, 2012), available at (last accessed July 20, 2017). The system allows “users to send up to 25 files securely to recipients within the .mil or .gov domains[, ]” and may be used by anyone so long as the recipient has a .mil or .gov email address. After an individual uploads data via the SAFE system, the intended recipient receives an email message indicating that “they have been given access to a file” on the system, and the message provides instructions for accessing the file. The message also indicates the date on which the file will be deleted. This “deletion date” is set by the originator of the file, and the default deletion date is seven days after the upload date, although a maximum of two weeks is permitted.

         Defendants portrayed the SAFE system as a conduit for information. Once a state had uploaded voter roll information via the system, Defendants intended to download the data and store it on a White House computer system. Second Kobach Decl. ¶ 5. The exact details of how that would happen, and who would be involved, were unresolved at the time of the hearing. Hr'g T r. 34:3-35:10; 35:23-36:9. Nonetheless, there is truth to Defendants' description. Files uploaded onto the system are not archived after their deletion date, and the system is meant to facilitate the transfer of files from one user to another, and is not intended for long-term data storage. As Defendants conceded, however, files uploaded onto the SAFE system are maintained for as many as fourteen days on a computer system operated by the Department of Defense. Hr'g T r. 31:7-32:5; 36:1-9 (The Court: “You seem to be indicating that DOD's website would maintain it at least for the period of time until it got transferred, right?” Ms. Shapiro: “Yes. This conduit system would have it for - until it's downloaded. So from the time it's uploaded until the time it's downloaded for a maximum of two weeks and shorter if that's what's set by the states.”). Defendants stated that as, of July 7, only the state of Arkansas had transmitted voter roll information to the Commission by uploading it to the SAFE system. Hr'g Tr. 40:10-18. According to Defendants, the Commission had not yet downloaded Arkansas' voter data; and as of the date of the hearing, the data continued to reside on the SAFE system. Id.

         Shortly after the hearing, Plaintiff amended its complaint pursuant to Federal Rule of Civil Procedure 15(a)(1)(A), and added the Department of Defense as a defendant. Am. Compl., ECF No. 21. The Court then permitted Defendants to file supplemental briefing with respect to any issues particular to the Department of Defense. Order, ECF No. 23. On July 10, Defendants submitted a Supplemental Brief, notifying the Court of certain factual developments since the July 7 hearing. First, Defendants represented that the Commission “no longer intends to use the DOD SAFE system to receive information from the states.” Third Decl. of Kris W. Kobach, ECF No. 24-1 (“Third Kobach Decl.”), ¶ 1. Instead, Defendants stated that the Director of White House Information Te ch nology was working to “repurpos[e] an existing system that regularly accepts personally identifiable information through a secure, encrypted computer application, ” and that this new system was expected to be “fully functional by 6:00pm EDT [on July 10, 2017].” Id. Second, Defendants provided the Court with a follow-up communication sent to the states, directing election officials to “hold on submitting any data” until this Court resolved Plaintiff's motion for injunctive relief. Id., Ex. A. In light of these developments, Plaintiff moved to further amend the complaint pursuant to Federal Rule of Civil Procedure 15(a)(2), to name as additional defendants the Director of White House Information Technology, the Executive Committee for Presidential Information Technology, and the United States Digital Service, which the Court granted. Pl.'s Mot. to Am. Compl., ECF No. 30; Order, ECF No. 31.

         Given the “substantial changes in factual circumstances” since this action was filed, the Court directed Plaintiff to file an amended motion for injunctive relief. Order, ECF No. 31. Plaintiff filed the amended motion on July 13, seeking to enjoin Defendants from “collecting voter roll data from states and state election officials” and to require Defendants to “disgorge any voter roll data already collected or hereafter received.” Proposed Order, ECF No. 35-6, at 1-2. Defendants' response supplied additional information about how the voter roll data would be collected and stored by the “repurposed” White House computer system. See Decl. of Charles Christopher Herndon, ECF No. 38-1 (“Herndon Decl.”), ¶¶ 3-6. According to Defendants, the new system requires state officials to request an access link, which then allows them to upload data to a “server within the domain” Id. ¶ 4. Once the files have been uploaded, “[a]uthorized members of the Commission will be given access” with “dedicated laptops” to access the data through a secure White House network. Id. ¶ 4-5. Defendants represent that this process will only require the assistance of “a limited number of technical staff from the White House Office of Administration . . . .” Id. ¶ 6. Finally, Defendants represented that the voter roll data uploaded to the SAFE system by the state of Arkansas-the only voter roll information known to the Court that has been transferred in response to the Commission's request-“ha[d] been deleted without ever having been accessed by the Commission.” Id. ¶ 7.


         Preliminary injunctive relief, whether in the form of temporary restraining order or a preliminary injunction, is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see also Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (“[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” (emphasis in original; quotation marks omitted)). A plaintiff seeking preliminary injunctive relief “must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley, 644 F.3d at 392 (quoting Winter, 555 U.S. at 20) (alteration in original; quotation marks omitted)). When seeking such relief, “‘the movant has the burden to show that all four factors, taken together, weigh in favor of the injunction.'” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)). “The four factors have typically been evaluated on a ‘sliding scale.'” Davis, 571 F.3d at 1291 (citation omitted). Under this sliding-scale framework, “[i]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor.” Id. at 1291- 92.[3]


         A. Article III Standing

         As a threshold matter, the Court must determine whether Plaintiff has standing to bring this lawsuit. Standing is an element of this Court's subject-matter jurisdiction under Article III of the Constitution, and requires, in essence, that a plaintiff have “a personal stake in the outcome of the controversy . . . .” Warth v. Seldin, 422 U.S. 490, 498 (1975). Consequently, a plaintiff cannot be a mere bystander or interested third-party, or a self-appointed representative of the public interest; he or she must show that defendant's conduct has affected them in a “personal and individual way.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). The familiar requirements of Article III standing are:

(1) that the plaintiff have suffered an “injury in fact”-an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of-the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Bennett v. Spear, 520 U.S. 154, 167 (1997) (citing Lujan, 504 U.S. at 560-61). The parties have briefed three theories of standing. Two are based on Plaintiff's own interests-for injuries to its informational interests and programmatic public interest activities-while the third is based on the interests of Plaintiff's advisory board members. This latter theory fails, but the first two succeed, for the reasons detailed below.

         1. Associational Standing

         An organization may sue to vindicate the interests of its members. To establish this type of “associational” standing, Plaintiff must show that “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Ass'n of Flight Attendants-CWA, AFL-CIO v. U.S. Dep't of Transp., 564 F.3d 462, 464 (D.C. Cir. 2009) (internal quotation marks omitted). Needless to say, Plaintiff must also show that it has “members” whose interests it is seeking to represent. To the extent Plaintiff does not have a formal membership, it may nonetheless assert organizational standing if “the organization is the functional equivalent of a traditional membership organization.” Fund Democracy, LLC v. S.E.C., 278 F.3d 21, 25 (D.C. Cir. 2002). For an organization to meet the test of functional equivalency, “(1) it must serve a specialized segment of the community; (2) it must represent individuals that have all the ‘indicia of membership' including ...

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